WIPOD – Page Points: Transcript of Episode 14

Intellectual Property and Food

Andrea Borghini:
So, Madd de Casamance is a very recent addition to the geographical indications and hopefully, for example, also through this book, it might highlight, bring ideas to chefs around the world, to restaurants, maybe to consumers for using a product that is really specific to a region, to a group of people, and in this case, also women has a very nice ecological profile and it tells actually probably the good side or the bright side of what a piece can do in the food domain.

Lise McLeod:
We all need to eat.  Food is connected to our cultural identity, our well-being and sometimes even our livelihood.  It is estimated that revenue in the food market is due to amount to just over 9 trillion USD in 2024.  And this market is expected to grow annually by 6.5% over the next 5 years.  Have you ever made the connection between food and intellectual property? Well, this book will give you ‘food for thought’ and yes, the pun is very much intended.

Hello, Page Points listeners. It's great to have you join us and to share our discussion about food, philosophy, and intellectual property. The co-authors of the book of the same name are with us today. Welcome Enrico and Andrea to the podcast. The book includes 50 case studies organized around eight themes, which invite us to look at food through the lens of IP.

The cases cover wide ranging terrain involving food products, recipes, and cooking. The book is aimed at scholars, practitioners, and businesses interested in IP, food law, and food studies.

How about we begin by you telling us about how the idea of the book came about?

Andrea Borghini:
Hi Lise, yes, it's a pleasure to be here. This is Andrea speaking and our collaboration began in 2018. I organized a conference on recipes and philosophy at the University of Milan where I teach. And Enrico was recommended to me by a colleague as a speaker that could cover cases concerning food and IP that would be of interest also to philosophers. And from there we started thinking how to collaborate on this topic and in a joint interest, let's say on food philosophy and intellectual property.

And one of the first things we realized is that there was really no text compiling the most compelling and interesting, I say, disputes that concern this subject. So when we thought about how to move forward our collaboration, the first thing we realized we had to do was to put together such a collection. So this is the book that we are talking about today. And maybe Enrico wants to add a little bit to this.

Enrico Bonadio:
We started putting together our expertise, philosophy with legal expertise to face, to analyze an interaction which until that time was never addressed, at least from this multidisciplinary perspective. Food philosophy and on the other hand, legal expertise, especially intellectual property expertise. And therefore we started looking at how, for example, to what extent copyright might protect the recipes, the obstacle to such protection, how patents have been obtained across the decades to cover processes for producing specific kind of food or probably more importantly, how trademark law and the law of geographical indications could give protection to producers of traditional foodstuff agricultural products. Probably amongst all intellectual property rights, geographical indications are the most suitable, let's say.

So now, perhaps Andrea could expand on the structure of the book because we have decided to give it a structure which is quite atypical, I would say.

Andrea Borghini:
One of the things you were saying is also this relationship between, let's say, the more technical aspects of the reasons underlying, say, a dispute, a specific dispute, which concern precisely the specific type of legal protection, the one is searching or the one is disputing.

We gave a structure based on eight thematic issues that are not precisely tied to the technical legal case of dispute, but they're actually looking at how the dispute is entangled with other aspects that impact society.

So this could be the type of product that consumers find in the supermarket, but also cases where a certain legal protection that is sought could empower maybe producers. Or instead cases that originate and relate really to histories of boundaries and often geographical proximity or migration of people, migration of techniques.

The book is arranged around precisely eight topics which sit at the intersection of the disputes. The other thing that is quite important for us, is that not all of those disputes actually had to happen in court. They are part of what can be considered as a part of food diplomacy.

The first part of the book, is the one that deals with, entitled images. It deals in general with the topic of the image that can accompany a product in different ways, you know, on the label or actually the shape itself of the product. And Enrico if I'm not wrong, you chose one case right here that we wanted to highlight for this occasion. And it's a very classic case.

Enrico Bonadio:
Yes, it is the Queso Manchego case. Queso in Spanish means cheese, and Castilla la Mancha, which is a region in Spain, a Comunidad autónoma. In Spain, Castilla la Mancha is very well known for cheeses, right? Cheeses production has been around there for centuries. And one of the high quality products there is Queso Manchego, which is also a geographical indication protected at EU level, in particular, more precisely, a protected designation of origin.
There was a case before the Court of Justice of the European Union. The case originated from a Spanish national case where basically a competitor to the Queso Manchego producers started the marketing a cheese not produced in that area and not produced, especially not produced according to the specifications of the geographical indication in question.

And basically the way the defendant was marketing the product was as follows. They basically did not copy directly the denomination, the protected designation, Queso Manchego, but they used on the packaging of their own cheese, imagery drawn from the famous work by Cervantes, the donkey shot, which is a worldwide piece of literature, right? Of Spanish literature. So for example, by including on the packaging images of windmills or including the name Rocinante, which is the horse, famously narrated in this piece of literature.

So all images that remind the consumers about a Castilla-La Mancha landscape, scenery, right? And quite surprisingly, the Court of Justice in that case sided basically with the GI owner, with the producers of the official Queso Manchego by saying that even though there is no direct use of any words or logos which is protected, especially words, Queso Manchego. Nevertheless, the use of imagery, which reminds consumers about that geographical origin, like the windmills and the classical scenes from the donkey shot. Well, such a use must be considered as illegal because it evokes to the mind of consumers the famous PDO, protected destination logic, of origin owned by the Spanish producers.

Such ruling, and we stress that in our book, such ruling by the Court of Justice has been strongly criticized because it has quite extensively expanded the scope of protection of  a GI, which is originally not, literally at least from the letter of the law, does not
include the use of other images which may remind the consumer. Yes, it includes a broad clause which says any other practice which could mislead consumers. But several commentators agreed that probably this ruling went too far in protecting a geographical indication for a foodstuff, for a cheese in the European Union.

This was probably one of the most interesting cases of section one on images. And the second section is about the genericity and descriptiveness, basically to what extent producers of food can protect or cannot protect terms which are considered too generic, descriptive of the goods upon which the brands, the signs are affixed. And we have chosen for this section the Parmesan cheese case.

Andrea Borghini:
Yeah, yeah, in the Parmesan cheese case, there will be a lot and there could have been even more to talk about than what we could include in the volume, of course. We covered the specific dispute that emerged within the EU at the beginning of the 2000s. I think it started in 2003 in Germany, with precisely with the denomination of this cheese as being only the cheese that is produced within the Parmigiano Consortium within Italy. And it was a famous case because it ended up in a win for the Parmigiano Consortium, right, protecting that Consortium towards the use of the term.

But as we know then the question of Parmigiano and the denomination extends also beyond the borders of Europe. And it brings us to say to North America with the production of Parmesan cheese, precisely in various states of within also the United States, most notably Wisconsin, and also in South America, for example, I think in Argentina, most notably where in both cases in Argentina and Wisconsin, have communities that migrated from Italy to produce there and made a product that is similar. One could argue identical.

Of course, that's what has been argued, but one could say is definitely similar to whatever used to be the Parmigiano 100, 150 years ago in Italy. And the matter there is, how do we decide whether this is a generic term referring to a cheese, precisely generically, or instead it's a specific term referring to a product that has to come from a specific region and be made in accordance to the rules and regulations of the recognized Consortium within that region.

And I think this issue of generosity and specificity, it's very interesting also from a philosophical, theoretical point of view precisely because it forces us to understand how the history of a term may be linked or not to the history of the people using it. And so the fact that a certain community migrating keeps using a term might not be enough, of course, to maintain the identity of that product.

We survey in the book also another famous case that is relatively similar, which is the one of Feta cheese that occupied the European court even before Parmesan. And it's quite important, I'd say, globally. And so, this section of the book deals with language in a way that thinks of how far we can expand the borders, let's say, in the domain of application of a term.

Instead, in the following section of the book, we looked at cases where language can be considered misguiding, not because of how large is the domain of application, but because of how the term may denote something that might actually not be referring at all to the product in question. And so this section for this reason we called language traps. And of this case, I think we are going to cover another relatively recent, but important dispute between producers of Prosecco and Prosec. Right Enrico?

Enrico Bonadio:
Yes, thanks Andrea. The dispute is still pending and it is between the producers of the famous Italian sparkling wine Prosecco, which has reached notoriety and commercial success in the latest two decades and a half more or less, right? And Prosecco is also a registered GI in the European Union, especially a PDO, a protected designation of origin.

Prosecco is the name of a little village in the northeast of the country of Italy. It's a little village close to Trieste, which gives the name to this wine. Even though most productions of Prosecco has been around another neighboring region, which is Veneto, Conegliano Veneto in particular. But anyway, the Italians recently complain about an application for another geographical indication, right? Made by the Croatians - the Balkan country. For a term which is quite similar to Prosecco. Prosec. But the products are completely different. I mean, they are still alcohol, but one, as I said, the Italian Prosecco is a sparkling wine.

And on the other hand, the Croatian Prosec is a dessert, pudding wine, very sweet to be taken with biscuits. So two different markets, basically, even though they are both alcohol products. But of course, the Italians have opposed such attempts by the Croatians to register the term Prosec for an alcoholic beverage because they are afraid of course of possible confusion on the part of consumers. And more importantly, because they wanted to avoid a precedent where terms, words similar to famous Italian geographical names for food or alcohol, but where these Italian sounding might be replicated by neighboring countries.

I would say that as far as the confusion, we have some doubts because as I said, the products are totally different. They serve different markets. Basically they are addressing different markets. There might be some good arguments for the Italians as far as the vocation element is concerned because GI laws in Europe also allow GI owners to prevent others from merrily exploiting the evocative power of the GI without actually confusing consumers.

So, to the best of our knowledge, the case is still pending and we'll see how this will proceed if the European Commission, which is in charge of the application by the Croatians, will go further. We don't know if they will accept, they will uphold the arguments made by the Italians, or they will allow the Croatians to register their own Prosec.

Andrea Borghini:
Yeah, so thinking also about the overall structure of the book, really in section one, we looked at perceptual aspects, right? The images that might accompany a product or the shape of a product. And then in section two and three, we looked at linguistic aspects. In section four, instead, the focus is on something quite different because it's procedures, something that consumers might not even perceive directly. And for example, we cover one procedure for aging rum much more quickly than usual, so the chemical aging of rum.

But a classic dispute among the procedures precisely concern kimchi or gimchi in starting from the 1990s between South Korea, which has today within the UNESCO intangible cultural heritage, recognize the Kimjang. So the practice and process of making kimchi, but not kimchi as a product. And so the matter and the heart of the dispute here was regarding the definition of the procedure for making kimchi.

And a stake was the fact that a lot of the kimchi that was made for, let's say foreign markets, foreign to both South Korea and Japan, in particular the United States market, was made in Japan according to ingredients and processes of fermentation that were not recognized as appropriate, traditional, let's say among quotes, by the South Korean government. So this is precisely a case that was not settled in court and actually entailed, let's say, international dialogue that in its early stages, it took shape within
the drafting of the Codex Alimentarius, right? Because in the Codex, there is actually a specification definition of kimchi and that definition, specification was drafted, let's say jointly or in agreement between the two countries.

And that specification in a way satisfied both ends in the sense that it arrived at least at
a standardized or agreed upon international definition of the product, which otherwise was missing. On the other hand, of course, fulfilled also the goals of the Japanese producers that could continue to produce kimchi in according to even to the fermentation techniques that they had used up until that time.

So this is an example and we cover kimchi also in another part of the book for a different kind of dispute, but it's an example of precisely an issue that maybe consumers might not directly perceive, but it's actually quite important and it cannot be solved only within one court. It cannot be settled within one court, but it requires international agreement and cooperation.

In the following section, we looked instead at cases of disputes that concern producers but typically on much smaller scales. And these specific disputes, they look at questions surrounding menus, menu scraping, for example, recipes. So recipe scraping or copyrights over recipes. And the more broader general topic of creativity. And within this, I think you wanted to cover Enrico to highlight the Kim Seng case, right, which is also a classic dispute.

Enrico Bonadio:
Yes, Andrea, this is a US dispute, from 2011. It has to do with a bowl of Vietnamese food containing rice sticks, egg rolls, and grilled meat. Basically, the owner of this image restaurant, what they did not like was that a competitor was using the same image, an image of the same food presentation on their own brochure, on their own menu. So they basically sued them on grounds of alleged copyright infringement. Infringement of copyright over such image, of the bowl of food containing such image.

The company, the plaintiff was Kim Seng Company, and they were trying to push the argument that this food presentation should be considered copyrighted. Unfortunately for them, the court did not agree on such argument, especially focusing on two requirements for copyright protection. Copyright experts know that a work is protectable by copyright if it is original enough. And in certain jurisdictions such as the US, if it is fixed in a support in a tangible medium.

So basically here the court said that there is nothing original in such bowl of food. Also because, this plating arrangement was comprised of unprotectable common elements which cannot be separated from their utilitarian function which is to be eaten. They are not original enough, cannot be considered like a sculpture, let's say, or like another kind of artwork. Also as far as the fixation requirement is concerned, the court here was quite clear saying, look, this is food which is a perishable food in the sense that it will be consumed, right? And therefore, if you consume the work, it's not fixed inherently, right? It doesn't satisfy the fixation requirement.

Okay, that was a case from 2011. But a commentator may say here, look, there are competitions between chefs on how to embellish more their own plating arrangements, right? And we know that chefs very often come up with food presentations that are highly artistic, right?

So we wonder whether in another case, the decision regarding the copyrightability of a food presentation might be different, especially in this era that we are currently living, which is an era of Instagram foodies or social media food enthusiasts who compete also by posting on their social media platforms photos of highly artistic plating arrangements. We closely watch the developments because we cannot be ruled out that in a future case a judge in America and other jurisdictions might instead tell us that certain plotting arrangements might be considered as works of art,

Now, as far as the next section is concerned, part six, about boundaries, Andrea is going to highlight and summarize a very interesting case which is Adan Krayan rice and the Rendang which we have covered in the book.

Andrea Borghini:
Yeah, thank you. So the previous section was really on small scale outside disputes, mostly. In this section about boundaries, we are looking at issues instead that are really fluid. They have to deal with the fluidity of food, food practices and in general the cultures, know, accompanying them. And they often happen between, across boundaries. There are lots of stories like these. People probably, wherever they perceive boundaries, you know, maybe they have some stories of these, of disputed products that could be attributed to one group or another.

But a few of them, ended up either in a court or in a diplomatic dispute between countries. And an interesting area to watch in this sense has been Southeast Asia, in recent years.Ffor this reason also we put together two disputes that happened between Indonesia and Malaysia in the last about 15 years, let's say. And they are quite different also in their histories, but both of them are really related to the fluidity of the product or a practice.

The product in case is the one of a variety of rice, precisely what is called as Adan Krayan rice. And this rice is one might say produced both in Indonesia and Malaysia, even though this is part of what is also under dispute. But the term, Adan Krayan rice, was precisely used as a geographical indicator by the Indonesian government in 2012.
And this is a case that precisely the Malaysian government challenged having them itself registered another variety of rice called Bario, there was let's say, the twin variety of rice of Adan Krayan. And this dispute concerns precisely a variety that can
essentially be seen as the same or certainly very similar, but whose markets can be exploited by one country or another.

And in the book we cover another very famous rice case, which is the one of Basmati that is disputed between two, one could say even three different countries. The one of a product traversing boundaries, in this case would be seeds and plants traversing boundaries as people move. It's just one example, right? And the case instead of Rendang is quite different because in the case of Rendang, to traverse the boundaries is a practice, one could say a recipe, it's a traditional recipe. Rendang is a traditional recipe, originated probably with the Portuguese in Sumatra. So it's a region that today is recognized as Indonesia, but people in Sumatra notoriously were traveling also to Malaysia and there was a lot of trade also with Malaysia, even during the Portuguese period there.

The Rendang is today perhaps by many of the listeners known as a beef dish, but there are versions of Rendang not just with beef but also with other meat or even fish and other products. And it's a disputed recipe in the sense that the question is whether Rendang, is it more Indonesian, is it more Malaysian, is it, you how can you claim that? So this dispute is not something that can be resolved through geographical indications clearly in this case. It's not even something that can be resolved as the disputes that we surveyed in the previous section, you know, like the Kimseng, where you have a court adjudicating one recipe to one group or another. Instead, it's really a case of boundaries that has to be resolved through diplomatic conversation and cooperation. But it still concerns the identity of a product, which is very important and very dear, of course, to a lot of people, including, if you think of a lot of restaurants abroad, right? So Indonesia and Malaysia have their own programs for restaurants abroad. And for those businesses to be able to feature Rendang as a national dish, it can be quite important. And one has to see how diplomatically this can be supported. And how better cooperation maybe can be envisaged. So as we were writing the book and as we speak, I think this type of conversation, especially about Rendang, is still ongoing.

So in the following part is that we cover other classic cases that probably every reader would have expected from this book, but we decided to limit ourselves here because otherwise there would have been really a lot to look at, which is biotechnology. And for this podcast, we chose just to talk about perhaps the most classic and debated biotechnological case, which is the one of Monsanto versus Schmeiser. Over to you, Enrico.

Enrico Bonadio:
Yes, this was a case from 20 years ago from the Supreme Court of Canada. So it's a Canadian case. It has attracted media attention, as Andrea said, it's a well-known case, which, according to several commentators, has led to an absurd result. And I'm going to explain why such a result might be perceived by many as absurd.

Here, Monsanto, the company, the GMO company, the most famous GMO company in the world, they have a patent, have many patents covering biotech products, right? In that specific case, the patent protected the genetic information, glyphosate-resistant genes for the canola plant, okay? Which I mean, it's a gene which makes canola resistant to weed control products Roundup, which is sold by the same company.

Anyway, on the other hand, we have a farmer, Percy Schmeiser, a Canadian farmer, who happened to have his own property next to Monsanto factory, to Monsanto fields, where Monsanto basically grows its GMOs. Right. So they were neighboring properties basically. What happened was that as a consequence of wind forces, there was cross-pollination of Percy Schmeiser’s property in the sense that his own plants, the plant that Schmeiser grew in his own property had been contaminated with the same genetic information patented by Monsanto because of the wind. That was a classical case of cross-pollination. Of course Schmeiser did not cause such cross-pollination, it was the mother nature, right, which caused such cross-pollination. And therefore, Schmeiser's plants had been grown there, incorporating the genetic information patented by Monsanto.

And Monsanto did not spare these farmers. Basically, they took legal action against him in Canada on grounds of patent infringement. Even though Schmeiser did not change himself the genetic information of his own plants, it was the wind which caused that. The case went up to the Supreme Court, which basically sided with Monsanto by saying, look, especially as far as injunctions are concerned, for the issuance of an injunction as a consequence of patent infringement, there is no need of a constructive knowledge by the infringer. Quoting from the ruling in 2004, so basically 20 years ago, the Supreme Court in Canada said, the general rule is that the defendant's intention to infringe is irrelevant when it comes to finding infringement. The issue is what the defendant does, not what he intends to do.

Well, one my argue here that this is an absurd result because this farmer, Schmeiser, did not contaminate himself. It was the wind which caused such contamination and therefore facilitated the infringement. But of course, by reading more closely the ruling, we find out that the farmer there, once he realized that his own plants had been contaminated, did not inform Monsanto, he stored all these plants in his own warehouses, and therefore this behavior, this kind of mala fide supervenience, right? A bad faith arising after the fact was enough for a finding of infringement. This is an old case which epitomizes the controversial nature of GMOs patenting. And we wanted to summarize this case because it's a landmark case which has attracted criticism, also amongst the media, of course. And we could not really leave out this case because, as I said, it has been and it still is a leading case in the field of biotech.

So having said that, the last section of the book is about empowerment. So in this section we have gathered, we have summarized cases where IP is being used, especially geographical indications, but not only, where IP rights are used by communities especially in developing countries. To protect local gastronomic heritage and of course also help underdeveloped regions of the world acquire shares in international markets of their own foodstuff. So for this case, we have chosen a case which is the Casamance case. Over to you, Andrea, for summarizing this case.

Andrea Borghini:
Yeah, and this is product typical of West Africa and especially of Senegal and the Senegalese government was directly involved. But before maybe saying two words about the situation and case. Maybe what is important to say here is that we didn't want to end the book just with a gloomy picture about IPs and with respect to food, because we saw that there are institutionally also situations where it might be important to have legal protection, right? So.

As we emphasize in the book, have soft tools can be quite important, so-called soft tools, so soft legal tools. And there are international associations such as, for instance, Slow Food, which we mentioned in the book, has some really nice programs that support specific products. At the same time, some of these tools sometimes they fall short in providing sufficient, let's say, strength on international markets to emerge for producers. And so it's important that international associations work with local governments or government associations, groups for creating stronger protections for producers. And this is a nice case. the case of Madd de Casamance really started thanks also to WIPO and FAO in 2017, when they organized what could be called a sub-regional or regional conference about the product, about Madd de Casamance.

It's a vine basically that grows around trees. We harvest the fruit and with this we can make jam, for example, some really nice delicacies that have also important medicinal properties and which are traded, as I mentioned, especially out of Dakar, you know, the main Senegalese port. And in fact, the Senegalese government was, after the initial steps facilitated by FAO and WIPO, involved in creating a geographical indication for the product.

And Madd de Casamance is an interesting story also of how geographical indication can entangle with, in this case, women producers, because a lot of the product is actually harvested by women and maintained and harvested by women. And also, an ecological perspective because we are talking about a product that is harvested in the forest, typically. We're not talking about an intensive agriculture product or something that has a perspective on ecology that might not run counter to the communities.

So, Madd de Casamance is a very recent addition to the geographical indications and hopefully, for example, also through this book, it might highlight, bring ideas to chefs around the world, to restaurants, maybe to consumers for using a product that is really specific to a region, to a group of people, and in this case, also women has a very nice ecological profile and it tells actually probably the good side or the bright side of what a piece can do in the food domain.

In the book, we also look at some other products from Mozambique, from South Africa, from the South America, you know Colombia, from Jamaica, and there'll be even more even from Southeast Asia as we were routing, there were other products coming up. I think this is certainly a topic, the one of empowerment, that it might be worth investigating even in the future. I think in our research.

Lise McLeod:
I'd like to thank you both for joining us today and for highlighting the cases from each of the eight themes. And our listeners, I'm sure, if they're not hungry, minimally, they will be hungry to take a look at this most practically-oriented scholarly work.

Enrico Bonadio:
Thanks for having us Lise.

Andrea Borghini:
Thank you.

Lise McLeod:
I would like to take this opportunity to remind listeners that the book is available at the WIPO Knowledge Centre. I have a feeling that we might have Andrea and Enrico back on the podcast for a second edition as ending with the final theme of empowerment, and not to mention the potential influence of technology, food will probably continue to play an important role related to intellectual property.

Until next time, and the next Page Points, bye for now!